The American State Constitutional Tradition

by John J. Dinan

For too long, the American constitutional tradition has been defined solely by the U.S. Constitution drafted in 1787. Yet constitutional debates at the state level open a window on how Americans, in different places and at different times, have chosen to govern themselves. From New Hampshire in 1776 to Louisiana in 1992, state constitutional conventions have served not only as instruments of democracy but also as forums for revising federal principles and institutions.

In The American State Constitutional Tradition , John Dinan shows that state constitutions are much more than mere echoes of the federal document. The first comprehensive study of all 114 state constitutional conventions for which there are recorded debates, his book shows that state constitutional debates in many ways better reflect the accumulated wisdom of American constitution-makers than do the more traditional studies of the federal constitution.

Wielding extraordinary command over a mass of historical detail, Dinan clarifies the alternatives considered by state constitution makers and the reasons for the adoption or rejection of various governing principles and institutions. Among other things, he shows that the states are nearly universal in their rejection of the rigid federal model of the constitutional amendment process, favoring more flexible procedures for constitutional change; they often grant citizens greater direct participation in law-making; they have debated and at times rejected the value of bicameralism; and they have altered the veto powers of both the executive and judicial branches.

Dinan also shows that, while the Founders favored a minimalist design and focused exclusively on protecting individuals from government action, state constitution makers have often adopted more detailed constitutions, sometimes specifying positive rights that depend on government action for their enforcement. Moreover, unlike the federal constitution, state constitutions often contain provisions dedicated to the formation of citizen character, ranging from compulsory schooling to the regulation of gambling or liquor.

By integrating state constitution making with the federal constitutional tradition, this path-breaking work widens and deepens our understanding of the principles by which we've chosen to govern ourselves.

Genres: History

440 pages, Hardcover

First published March 1, 2006

Reviews

[Frank Stein · Rating 4 out of 5]

Like many books that recount constitutional debates, this one can be tedious and predictable. Delegates to constitutional conventions spend paragraphs explaining that legislatures can be overbearing, that minorities can be oppressed by majorities (or vice versa), that unfettered discretion is bad, that good morals in the population is good, and so on.

Yet this book does the seemingly impossible, it uncovers an almost hidden constitutional debate in America, one that is not only separate but is in many ways completely different to the more famous United States Constitutional debate. Since Independence, the states have held about 233 state constitutional conventions (New Hampshire has had 17, Georgia and Louisiana 12, New York and Virginia 9), adopted 146 constitutions, and approved over 6,000 amendment. The conventions, the most important of all these constitutional reforms, were most often called in the Jacksonian Era of the 1830s and '40s, in the South during Reconstruction in the 1860s, across the country during the early 20th century Progressive Era, and again in the 1960s after the Baker v. Carr and subsequent Supreme Court decisions demanded equal reapportionment of legislatures. Importantly for this book, 114 constitutional debates were recorded in full.

Although the nature of these debates can seem predictable, the outcomes were not. As often as not states came down on the opposite side of many issues as the US Constitution. For instance, although James Madison in Federalist 49 argued against "frequent appeals" to the people and frequent constitutional amendments, which would "deprive the government of that veneration which times bestows on everything" and lead issues to become twinned with "the spirit of party," states gradually decided to make their constitutions very easy to amend, often after no more than a single supermajority legislative vote and a majority vote of the people. In the 1830s, many wanted to keep amendments simple to allow for legislative reapportionment as the West grew more powerful, and later concerns about judicial overreaching encouraged the same result. Originally amendments were allowed after two supermajority votes of the legislature; Connecticut was the first state, in 1818, to require an appeal to the people too, but then most made it easier. Maine in 1819 the first to end two consecutive legislative votes, Pennsylvania in 1838 the first to end legislative supermajority requirements. Also, as early as 1784, New Hampshire required voters to vote on a new constitutional convention every seven years (although many states moved up to 20). In 1910 Congress even got involved, by refusing to allow New Mexico to enter the union without first allowing people to vote if they wanted to keep the constitution's legislative supermajority amendment requirement. In 1902, Oregon adopted the constitutional initiative, allowing people themselves to propose new amendments, the first of 13 states to do so during the Progressive Era, with 5 more following after the 1960s.

Many states also demanded direct appeals to the people for some laws, despite complaints about ruining "republican" government and substituting it with mere "democracy." In 1842 Rhode Island demanded that any debt over $50,000 be approved by the people. Illinois required certain taxes to be so ratified from 1848, and Wisconsin required certain banking laws to get a popular vote in the same year. Many states at first submitted liquor laws and prohibition to referendums, but state courts struck down statewide referendums and allowed mainly local option votes. While such popular votes could seem anathema to those infused by Madison's defense of republicanism, they almost became the new state norm.

There are lots of other state issues that were decided in ways that did't match the federal version. Today, 12 states allow executive veto overrides on less than 2/3s of the legislature, and 6 on a mere majority legislative vote. The line item veto was adopted by Texas in 1865 and Georgia in 1866 (almost always just for appropriations), followed by many states afterwards. Three states in the Progressive Era, starting with Ohio in 1912, allowed judicial rulings to be overturned by 2/3s vote of the legislature, and, beginning with Oregon in 1908, 12 allowed recall of judges. Unlike the federal constitution, which eschews "positive rights," many state constitutions have, beginning with North Dakota in 1889, adopted anti-blacklist or pro-union rights (or later, right to work rights). Many require general education and funds for the poor. Beginning with New York in 1938, they have included general rights to health, or general rights to good environment. At the same time, many states began tying their constitutions to moral uplift eschewed by the US's version, such as with compulsory education, liquor laws, and lottery abolition (which was illegal everywhere in the US from 1894 to 1964).

This review may make the book sound like a list of clauses, but that was actually just the most interesting part to me. The debates that take up the majority of the book, on bicameralism, on initiative and referendum, and so forth, plow familiar and predictable terrain. Still, I now think that one cannot talk about the US constitutional tradition, and the genius of American institutions, without referencing the state constitutional debates, and that means referencing this book.